Parliamentary Sovereignty Flashcards
Sir William Blackstone was arguably the leading 18th century legal theorist and he said, in his work “Commentaries” published in 1765:
“I know it is generally laid down … that Acts of Parliament contrary to reason are void. But if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control
2) ORIGINS OF PARLIAMENTARY SOVEREIGNTY
Dr Bonham’s case [1610]
Glorious Revolution of 1688
Bill of Rights 1689
….when an Act of Parliament is against the common right or repugnant or impossible to be performed the common law will control it and adjudge such Act to be void.
Parliament’s supremacy over the king was established. Thereafter assertions of any overriding higher law ceased, and judges bowed to the sovereignty of Parliament.
“Natural law” was giving way to Parliamentary Sovereignty.
City of London v Wood [1701]
Madzimbamuto v Lardner Burke [1969]
House of Lords said: An act of parliament can do no wrong thought it may do several things that look pretty odd.
“it is often said that it would be unconstitutional for… Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things.But that does not mean it is beyond the power of Parliament to do such things. If Parliament chose to do any of them, the courts could not hold Act of Parliament invalid”
3) WHAT DOES PARLIAMENTARY SOVEREIGNTY MEAN?
The orthodox Diceyan theory
(3) Limbs to Dicey’s Definition
Dicey (1835 – 1922) Among his many pronouncements he defined Parliamentary Sovereignty as follows:“principle of parliamentary sovereignty means: Parliament…… has…….. right to make and unmake any law whatever, no person or body is recognised as by the law of England as having the right to override or set aside the legislation of Parliament.”
There are three limbs to Dicey’s definition of Parliamentary Sovereignty:
• Parliament Make or Unmake any Law.
• No other body can override or set aside legislation of
• Parliament cannot bind its successors.
The Enrolled Bill Rule
Edinburgh and Dalkeith Railway v Wauchope [1842]
Pickin v British Railways Board [1974]
Lee v Bude and Torrington Junction Railway Co [1871]
(Marbury v Madison [1803]).
If an act formally valid – cannot be set aside for a procedural irregularity noticed during its passage through parliament.
confirmed principle enrolled bill rule.
“….If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repeal… but, so long as it exists as law, the courts are bound to obey it.”
Judges can not call into question legality of acts of Parliament.
ϖ Parliament can not bind its successors
Express Repeal
Implied Repeal
Each and every Parliament must be supreme in its own right. No Parliament can be bound by a preceding Parliament, nor can a Parliament bind its successor.
Not possible to entrench legislation, to enact a statute which is unchangeable by subsequent statutes.
Two acts of Parliament and the latter address the former, ruling it void.
What happens where two Acts both passed by a Supreme Parliament conflict with each other? Which one wins?
“the doctrine of Implied Repeal”
Vauxhall Estates Ltd v Liverpool Corporation [1932]
Ellen Street Estates Ltd v Minister of Health [1934]
Acquisition of Land (Assessment of Compensation) Act 1919
Where two Acts conflict the courts take the later one as impliedly repealing the earlier one to the extent of the inconsistency.
provided code for assessment of compensation payable in cases of compulsory purchase of land.
s.7(1) of the 1919 Act stated that if the provisions in the 1919 Act were inconsistent with the provisions of any subsequent Act of Parliament then the provisions in the 1919 Act would prevail.
Attempt to bind parliament. Held that new 1925 Housing act prevailed. No parliament bound by predecessor – the latter act is the most recent expression of the will of the people.
Does a “constitutional” text affect the Courts’ approach?
Murray v Rogers [1992].
Whether Treaty of Union (approved by the Scottish Act 1706) is a ‘constitutional statute’ which takes precedence over inconsistent subsequent legislation.
Treaty of Union is a ‘constitutional’ text in so far as it sets conditions of the union of Scotland and England.
E.G. taxes would not be levied upon Scotland if equivalent tax was not levied in England before or at the same time. Nearly 300 years later came offending Community Charge or Poll Tax of the Thatcher government.
According to Dicey’s orthodox theory of Parliamentary Sovereignty, it is not possible to ‘entrench’ legislation. Parliament can not enact a statute which is unchangeable by subsequent statutes.
Procedural entrenchment
Examples closer to UK system:
• Attorney-General for New South Wales v Trethowan [1932]
In relation to the Human Rights Act 1998, entrenchment was a concept alien to our constitutional history and customs and should not be adopted. It went through as an ordinary Act of Parliament which can be repealed or amended, like any other Act, on a bare majority.
Government of 1930 attempted to pass two Bills – one to repeal s.7A of the Constitution amendment act 1929, the other to abolish the Legislative Council Australian Constitution. )
The Privy Council held that the attempts to pass the two Bills were ultra vires as the correct procedures stipulated in s.7A. That provision had been successfully entrenched and the Australian legislature must follow the procedure.
Harris v Minister of Interior [1952]
South African provisions of their written constitution. The powers of the South African Parliament derived from the South Africa Act 1909, legislation which was passed by the UK Parliament.
The Court in this case held that the 1951 Act was null and void and of no legal force and effect.
Reminder: the cases discussed above relate to countries with a written constitution which restricts the power of the legislative body to act “unconstitutionally”.
4) THEORY V PRACTICE: CHALLENGES TO PARLIAMENTARY SOVEREIGNTY
Grants of Independence
Blackburn v AG [1971]
Madzimbamuto v Lardner Burke
There are times when the law, applying our understanding of Parliamentary Sovereignty, says one thing but the reality on the ground says another.
The Statute of Westminster 1931 s.4 provided for what had become a constitutional convention: British Parliament would not legislate for the ‘Dominions’ (i.e. Australia, Canada, New Zealand etc) without request.
Lord Denning remarked: Freedom once given cannot be taken away. Legal theory must give way to practical politics.
In practical terms the court had no basis to enforce legislation enacted in Westminster.
Devolution
Northern Ireland
Constitutional changes since 1997 can be summarised as follows.
Northern Ireland (otherwise known as the Good Friday) Agreement of 1998. Northern Ireland (Elections) Act 1998 and the Northern Ireland Act 1998.
i) a devolved assembly with legislative powers,
ii) a new Northern Ireland Human Rights Commission and
iii) an Equality Council
Scotland
Scotland Act 1998, directly elected Scottish Parliament has the power to pass legislation to alter Scottish law, subject to constraints.
In common with English law (see later) legislation created by Scottish Parliament must be compatible with EC law and Convention rights within meaning of the Human Rights Act 1998.
The Scotland Act 2012 transferred further fiscal powers to Scottish Parliament and revised the boundaries of the devolution settlement.
Fundamentally Westminster Parliament has retained the right to legislate for Scotland on reserved matters.
Independence cannot take place without the consent of the Westminster Parliament.
Similarly the Scottish Parliament could be abolished by an Act of the UK Parliament.
Wales
The Government of Wales Act 1998 gave some very powers to the Welsh Assembly.
The Government of Wales Act 2006 clarified the roles of various institutions, and gave the National Assembly of Wales powers to make laws for Wales in defined areas.
Referendum on law-making powers on 3 March 2011, Wales voted in favour of giving the National Assembly further law making powers. The new powers came into force on 5 May 2011. National Assembly can now make laws in all areas covered by the original devolution settlement
ϖ The European Communities Act 1972
The UK’s membership of the European Union (EU)
European Communities Act 1972.
Section 2(1) ECA 1972
The UK joined the EU, after Gov signed treaty.
Condition of membership that state accepts the supremacy of EU law over its national law. Requirement of ‘direct effect’. EU law (or some of it, like treaty provisions) has to be put into effect by the courts of the member state, with state remedies for breaches of EU law.
Treaty of Rome alone did not make EU law part of UK law. The UK Parliament had to pass an act to make this so.
All such rights, powers, liabilities, obligations and restrictions of Treaties, and remedies / procedures are without further enactment to be given legal effect or used in the United Kingdom & recognised available and enforced;
Section 2(4) – binding future parliaments - any enactment passed or to be passed,
Export Tax on Art Treasures (No 2) [1972]
shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this act to make Orders in Council [or orders, rules, regulations or schemes].
• Accepted that the 1972 act has placed limitations on parliamentary sovereignty.
European Court of Justice (“ECJ”) stated that:
“grant to the Community by Member States of powers envisaged by the provisions of the Treaty implies a definitive limitation of their sovereign powers over which no appeal to provisions of international law can prevail
Garland v British Rail Engineering Ltd [1983,
Stoke-on-Trent City Council v B&Q plc [1990]
R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991]
Lord Diplock (for a unanimous house) said that a UK court should interpret domestic legislation in a manner that respects Community obligations… “…however wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve consistency”.
Hoffmann asserted:
Treaty of Rome is the Supreme Law of this country taking precedence ofver acts of parliament.
Leading House of Lords case since Garland - Supremacy of EU law.
Discrimination on the basis of Nationality, Contrary to EU Law.
Very significatnt as for any court to disapply British law goes to the heart of their constitutional power. Interim Relief – to decide what to do. HoL were undedicd and reffered to ECJ – who adviced. Returned to house of lords and Interim Relief grant.
Implied Repeal – here excluded.
Lord Bridge challegened the view that this was novel, stating long before UK joined EC, EC law was established. Parlaiment knew what it was doing and the limitation on its powers / supremacy was voluntary.
“Thus whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.”
Ec act not impliedly repealed by the merchant Shipping act.
The 1972 Parliament had succeeded in binding the 1988 Parliament.
Implied Repeal – here excluded.
Ec act not impliedly repealed by the merchant Shipping act. The 1972 Parliament had succeeded in binding the 1988 Parliament.
Thoburn v Sunderland City Council [2002].
Macarthys Ltd v Smith[1979]
Contrast this decision with that in Murray v Rogers – community charge – went the other way – act of union 1700, ec act treated differently rather as a heavy wait statute. Clearly, where the 1972 Act is concerned, the rules are different.
1972 statute was a constitutional statute – could not be impliedly repealed.
Denning – if parliament expressly attempted to override EU law, courts would be obliged to follow parliament. E.g. Overriding any inconsistent provisions of the EC Directive [xyz].
Garland - UK judges must obey a statute which goes against EU law in “express positive terms”.
